Revenue and Customs v Professional Game Match Officials Ltd

Appellant

Jonathan Peacock KC

Georgia Hicks

Harry Sheehan

(Instructed by McCormicks Solicitors)

Respondent

Akash Nawbatt KC

Sebastian Purnell

(Instructed by HMRC Solicitor's Office (Bush House))

Lord Richards (with whom Lord Hodge, Lord Leggatt, Lord Stephens and Lady Rose agree):

Introduction

1. The underlying issue in this litigation is whether part-time football referees were employees of the appellant company. The issues raised by this appeal concern two critical elements in determining whether a contract of employment exists. First, the mutual obligations involved in the provision of services personally by the putative employee and the obligation of the putative employer to pay remuneration for those services. Second, the requirement for a sufficient degree of control by the putative employer over the provision by the putative employee of his or her services. These elements, and the issues before the Court, can be understood only in the broader context of the correct approach to deciding whether an employment relationship exists.
2. The issues in this case arise in the context of taxation and National Insurance payments. The relevant legislation adopts employment under a contract of employment or under a contract of service as the criterion for determining the treatment of income for the purposes of income tax and National Insurance contributions. The legislation contains no definition of a contract of employment or a contract of service but leaves them to be determined in accordance with common law principles. It is not a case where a particular meaning is to be given by reference to the context and purpose of the legislation.
3. As will appear, this is by no means unique. Important rights, remedies and obligations arising under legislation and at common law in many fields are also dependent on the common law concept of a contract of employment.

The applicable legislation

4. The Income Tax (Earnings and Pensions) Act 2003 imposes charges to income tax on "employment income" and makes provision for its collection through the Pay As You Earn scheme (PAYE). So far as relevant, section 4(1) provides that "employment" includes "any employment under a contract of service".
5. The Social Security Contributions and Benefits Act 1992 provides for the payment of National Insurance contributions. Different regimes are provided for "employed earners" and "self-employed earners". So far as relevant, an "employed earner" is defined by section 2(1)(a) as "a person who is gainfully employed... under a contract of service". For the purposes of the Act, section 122(1) defines a "contract of service" as "any contract of service or apprenticeship whether written or oral and whether express or implied".
6. There is no distinction between a contract of employment and a contract of service, either at common law or for the purposes of these statutory provisions.

The facts: a brief summary

7. At this stage, I will give a brief summary of the facts, leaving the more detailed facts to the sections below dealing with the issues on the appeal.
8. The appellant, Professional Game Match Officials Limited ("PGMOL"), is a company limited by guarantee which provides…